On May 24, 2016, following a three week trial, a jury in Scott County, Illinois returned a verdict in favor of the hog producer defendants and against ten Plaintiffs who had brought a cause of action for private temporary nuisance relating to odor, flies and dust allegedly caused by a swine livestock management facility. This was the first such trial in Illinois filed by plaintiffs’ counsel from Georgia and Kansas City, who have dozens of similar cases pending nationwide. It was a significant victory for the Illinois pork industry.

The case was originally filed in June of 2010. After extensive discovery, the case first went to trial in March of 2014, but Judge David Cherry declared a mistrial when activists from the Illinois Citizens for Clean Air and Water (ICCAW) were discovered to have passed out anti-CAFO materials in the courtroom during trial.

The cause of action for private temporary nuisance filed by the plaintiffs required that they prove that plaintiffs’ use and enjoyment of their property was damaged as the result of an invasion to their property that is (a) substantial, (b) intentional or negligent, and (c) unreasonable. Any diminished fair market value of the nearby plaintiffs’ homes and any harmful health effects were not alleged by plaintiffs’ counsel and thus not considered by the jury.

Plaintiffs presented the testimony of the ten plaintiffs and then called Kathy Martin from Norman, Oklahoma as an expert witness. She opined that “best management practices” were not followed by Sandstone North, LLC, Hollis Shafer, Genesis Pork, LLC and Illini Pork, LLC since they did not employ bio-filters on the pit fans, maintained “lagoons” on the premises which were not necessary and were not covered, overstocked the facilities with hogs, and rather than keep the facilities clean during a turn of pigs, allowed dust to accumulate. She was aggressively cross-examined on those issues by defense counsel.

Defendants called as a witness Brian Bradshaw, who defended his management of the facilities. Defendants also called Warren Goetsch of the Illinois Department of Agriculture who explained the extensive regulatory process needed to gain approval of the location, design and construction of the facilities. David Ginder of the Illinois Environmental Protection Agency testified to the fact that start-up issues dealing with dead animal disposal did not result in odor off-site and testified to the lack of any significant public or agency complaints after the first few months of operation.

In order to address and rebut the testimony of Kathy Martin, defendants called two experts. Ken Holscher, an entomologist from Iowa State University, who testified that flies allegedly experienced by the plaintiffs were not associated with swine livestock management facilities. Dr. Ted Funk, formerly with the University of Illinois Extension Service and now a consultant to the Illinois Pork Producers Association, testified in support of the “best management practices” of the facilities, particularly that bio-filters on pit fans are not the “industry standard” and that the operation of the “lagoons”, which he characterized as temporary earthen storage, were not inappropriate, even without covers.

Defendants also presented testimony from four non-plaintiff neighbors that lived north of the facility who told the jury that the odor from the facility did not impact the use and enjoyment of their properties. During closing arguments, defense counsel pointed out that these individuals did not stand to gain anything from their testimony about odor, as opposed to the Plaintiffs who were seeking substantial money damages.

Damages of $750,000 for each of the ten plaintiffs was requested. The jury deliberated a little more than one hour before returning a verdict for each defendant and determining that plaintiffs were not entitled to any damages. Post-trial motions and perhaps an appeal may follow.

Defendants were represented by the Springfield law firm of HeplerBroom, LLC (Stephen R. Kaufmann, Jennifer Martin, Jessica Galanos and Brian Lee) and the Des Moines firm of BrickGentry, P.C.